Rama Prosad Roy Chowdhury vs Baidyanath Bandopadhya

Sankar Prasad Mitra, J.—In this petition the election of the Respondent No. 1 to the West Bengal Legislative Assembly from 274 Suri Assembly Constituency has been challenged. The Petitioner is an elector of the constituency. He has made various charges of corrupt practices against the returned candidate or his agents with his consent or by his agents in his interest. There are also allegations of non-compliance with certain provisions of the Representation of the People Act, 1951.

On May 22, 1967, in the presence of counsel for the Petitioner, the Respondent No. 2, who was one of the contesting candidates, and the Respondent No. 1, the following issues were settled:

Is the petition not maintainable on grounds alleged in paras. 24 and 25 of the written statement?

Is the returning officer a necessary party to this petition? If so, is the petition liable to be dismissed?

Was any corrupt practice committed by or with the consent of the Respondent No. 1 as alleged in sub-paras. (d), (f), (g), (h), (i), (k), (kk), (l) and (m) of para. 10 of the petition and other sub-paragraphs thereunder?

(a) Was any corrupt practice committed in the interest of the Respondent No. 1 as alleged in sub-paras. (d), (e), (f), (g), (h), (j), (k), (kk), (l) and (m) of para. 10 of the petition and other sub-paragraphs thereunder?

(b) Was there any improper reception, refusal or rejection of any vote or the reception of any vote which is void as alleged in sub-paras. (f), (g), (h) and (m) of para. 10 of the petition and the sub-paragraphs thereunder?

(c) Was there any non-compliance with the provisions of the Representation of the People Act, 1951, or rules and orders framed thereunder as alleged in sub-paras. (d), (e), (f), (g), (h), (j) and (m) of para. 10 of the petition and sub-paragraphs thereunder? If so, has the result of the election in so far as the Respondent No. 1 is concerned been materially affected?

What relief, if any, the Petitioner is entitled to?

On the day the issues were settled, it was also recorded that at the hearing it would be open to the Respondent No. 1 to contend that the acts alleged in para. 10 of the petition do not constitute corrupt practices.

I now propose to deal with the issues seriatim.

Issue No. 1:

In paras. 24 and 25 of the written statement of the Respondent No. 1 it is alleged, inter alia, that one of the annexures to the petition contravenes the provisions of the Act of 1951, the Conduct of Election Rules, 1961, and the rules framed by this Court for purposes of election petitions. It is alleged further that the verifications made by the Petitioner are also not in accordance with law.

Learned Counsel for the Respondent No. 1 relies on Sub-section (2) of Section 83 of the Act of 1951 which says that any schedule or annexure to an election petition shall also be signed by the Petitioner and verified in the same manner as the petition. Now u/s 117 of the 1951 Act at the time of presentation of an election petition, the Petitioner has to deposit in this Court a sum of Rs. 2,000 as security for costs of the petition. Rule 16(1) of the Election Petition Rules, 1967, of this Court provides that the Petitioner in an election petition before presenting such petition to the High Court shall deposit in cash a sum of Rs. 2,000 with the Registrar, Original Side; the receipt showing the deposit of the security for costs granted by the Registrar shall be made an annexure to the election petition before presentation to the High Court which shall be signed and verified in the manner prescribed by Rule 12.

The first Respondent''s counsel has urged that on April 7, 1967, when the petition was presented, the receipt for the security deposit was annexed to the petition being annex. I thereto; but this receipt was not ''signed'' as required by Rule 16(1). The receipt in fact was ''signed'' on April 10, 1967, when the defect was pointed out by the first Respondent''s counsel. It is submitted to me that by reason of the defect aforesaid there has been contravention of Rule 16(1) of the Election Petition Rules read with Section 83(2) of the Act of 1951 and, as such, the present petition is not maintainable.

I am unable to accept this contention of counsel for the Respondent No. 1. It seems to me that the defect complained of is one of procedure and not one of jurisdiction of this Court to adjudicate upon the disputes raised in this petition. In Section 86 of the Act of 1951 it is specifically provided that--

The High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117.

In other words, to my mind, the High Court has no power to dismiss an election petition on the ground of non-compliance with any of the provisions of Section 83 of the Act. Since the non-compliance complained of is a non-compliance of a rule of this Court read with Section 83(2), I do not think I have any jurisdiction to dismiss the petition on this preliminary ground. In support of this view, I may rely on an observation of the Supreme Court in Jagan Nath Vs. Jaswant Singh and Others, . This was a decision on certain provision of the Representation of the People Act, 1951, as it then stood. The Supreme Court observes:

It is one of the rules of construction that a provision like this is not mandatory unless non-compliance with it is made penal.... It is thus clear that there is no valid explanation to say that Section 82 was omitted from the provisions of Section 85 simply on the ground that the Election Commission was absolved from the duty of making elaborate enquiries at the stage when it had to say whether the provisions of Sections 81, 83 and 117 had been complied with. From the circumstances that Section 82 does not find a place in the provisions of Section 85, the conclusion follows that the directions contained in Section 82 were not considered to be of such a character as to involve the dismissal of a petition in limine and that the matter was such as could be dealt with by the Tribunal under the provisions of the CPC specifically made applicable to the trial of election petitions.

It seems to me that these principles laid down by their Lordships of the Supreme Court are relevant for the purpose of deciding this point and I cannot hold that the present petition is not maintainable on the ground that the receipt for the security deposit was not signed on the date of the filing of the petition. The answer to this issue, therefore, is that the petition is maintainable despite the aforesaid defect.

Issue No. 2:

Under this issue counsel for the Respondent No. 1 has urged that in this election petition there are various allegations against the presiding officers and other officers of the Government connected with the election. For instance, it is alleged in para. 10(g) of the petition, inter alia, that in booth No. 57 situated in the Bhurkuna Primary School a large number of voters belonging to the poorer classes were not allowed to enter the booth throughout the day and were thus prevented'' from casting their votes; they were asked by the presiding officer to wait till the bhadraloks left the booth after casting their votes; and thereafter, ''the lower class voters'' would be allowed to enter the booth: throughout the day many of the voters were thus dissuaded from voting as, after waiting for several hours they out of sheer disappointment had to leave the place without casting their votes. Learned Counsel''s point is that unless the officer or officers against whom allegations like these have been made were parties to the petition the trial of the petition could not proceed. In any event, the returning officer under whom all the other officers had worked should have been made a party. Learned Counsel submits that the failure of the Petitioner to make at any rate the returning officer a party entails the dismissal of the petition.

Here again I do not accept the contentions of the first Respondent''s counsel. For the purpose of this petition we have to rely on the provisions of the Act of 1951. Section 82 of this Act specifically makes provisions for ''parties to the petition''. The section runs thus:

A Petitioner shall join as Respondent to his petition--

(a) Where the Petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the Petitioner, and where no such further declaration is claimed, all the returned candidates; and

(b) any other candidate against whom allegations of any corrupt practice are made in the petition.

In view of the above provisions it seems to me that it is not incumbent upon an election Petitioner to make any person a party to his petition other than the persons named in Section 82. I cannot, therefore, dismiss the petition on the ground that the returning officer or a particular presiding officer is not a party. The answer to this issue is, therefore, in the negative.

Issues Nos. 3 and 4:

So far as these issues are concerned evidence was led more or less on all the sub-paragraphs of para. 10 mentioned therein. But in their final arguments Mr. B.C. Mitra, learned Counsel for the Petitioner, and Mr. Haldar, his learned junior, confined themselves to paras. 10(kk), 10(i), 10(f) and 10(h). Mr. Roy who was appearing for the Respondent No. 2 did not address me on the facts at all; he merely made certain submissions on points of law. In these premises, while dealing with these two issues, I shall discuss only the points raised in para. 19(kk), 10(i), 10(f) and 10(h) of the petition.

But before I come to the allegations of corrupt practices made in these sub-paragraphs it would be necessary to recall certain basic principles which have to be observed by Courts in dealing with petitions of this nature. These principles are:

(1) In pleading corrupt practices it should always be remembered that charges of corrupt practices are quasi-criminal in character, and that allegations relating thereto must be sufficiently clear and precise to bring home the charges to the candidate: Harish Chandra Bajpai Vs. Triloki Singh, .

(2) The burden of proving that the election of a successful candidate is liable to be set aside on the plea that he was responsible directly or through his agent for corrupt practices at the election, lies heavily upon the applicant to establish his case, and unless it is established in both its branches, that is, the commission of acts which the law regards as corrupt, and the responsibility of the successful candidate directly or through his agent or with his consent for its practice, not by mere preponderance of probability but by cogent and reliable evidence beyond any reasonable doubt, the petition must fail: Jagdev Singh Sidhanti Vs. Pratap Singh Daulta, ; S. Kandaswami Vs. S.B. Adityan and Others, .

(3) The reason why corrupt practices must be established by cogent and reliable evidence beyond any reasonable doubt, is that the proof of the charge has a double consequence; the election of the returned candidate is set aside and he incurs subsequent disqualification as well (Section 100(1)(b), Section 100(1)(d)(ii), Section 99 and Section 8A of the Representation of the People Act, 1951): Dr. Jagjit Singh Vs. Giani Kartar Singh and Others, .

(4) A corrupt practice cannot be held to be proved merely on the ground that no specific denial has been made in the returned candidate''s written statement; strict rules of pleadings prescribed by Order 8, Rule 5 of the CPC cannot be blindly invoked in election proceedings involving corrupt practices: in fact, in such proceedings the proviso to Rule 5 of Order 8 has to be kept in view, namely, "that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission": Dr. Jagjit Singh Vs. Giani Kartar Singh and Others, .

(5) The main onus, the burden of proof as a matter of law and as a matter of adducing evidence, is on the person who challanges an election on the ground of corrupt practice; but if he has adduced sufficient evidence, the burden of adducing evidence shifts to the returned candidate. When, however, the entire evidence has been adduced the burden of proof becomes merely academic: Sheopat Singh Vs. Ram Pratap, and Kumara Nand Vs. Brijmohan Lal Sharma, .

(6) When witnesses called by an election Petitioner to establish his charge of corrupt practice are partisan or interested witnesses, the Court has to be very careful in weighing their evidence; whether or not there are discrepancies in the evidence; whether or not the evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable are all matters which must be taken into account. In other words, the judicial approach has to be cautious in dealing with such evidence which must be weighed and evaluated on its intrinsic worth in the background of all relevant surrounding circumstances: Masalti Vs. State of U.P., and Prithvi Singh Azad Vs. Ajaib Singh Sindhu and Others, .

It is in the light of the above principles that we have to approach the pleadings in the instant petition and the evidence led in support of corrupt practices alleged by the Petitioner.

I would first come to para. 10(kk) of the petition. In this paragraph it is alleged:

Several agents of the Respondent No. 1 including Moulavi Rousan Ali, Moulavi Mohd. Khalilur Rahaman, Idris Hazi and several other persons with the consent of the Respondent No. 1 appealed to the Muslim voters by holding meetings or otherwise in the name of religion verbally as well as by distributing printed booklets, inter alia, to vote for the Respondent No. 1 and to refrain from voting in favour of the Respondent No. 2. Alternatively, the Respondent No. 1 caused the above-mentioned propaganda to be made through the above-mentioned persons for the aforesaid purpose. Such meetings were held in Kuitha, Sahapur and Thobagram on February 14, 1967, and in Dhananjaybati and many other Muslim localities in that constituency on different dates. Total number of Muslim voters in this constituency is about 18,000. The said booklet with the title ''Appeal to Muslim Brethren'' is hereto annexed and marked ''H''.

The Petitioner has then given an unofficial translation of relevant extracts from the booklet. But instead of relying on this unofficial translation, I intend to quote certain extracts from the official translation thereof. In this booklet in Bengali marked Ex. E, inter alia, the following statements have been made:

(1) Hence in order to save religion all religious-minded people, irrespective of community and religion, ought to vote against communism. It is the imperative duty of the Muslims, according to God''s gospel in the Quran, to fight against communism and those who profess this creed.

(2) Due to a slight difference of opinion the communists in our country are divided in several groups. Some of them are radicals, some extremists and some are a little bit of liberals. The S.U.C. belongs to the extremist groups. They want to spread their doctrine in the whole country quickly. With a view to fulfil this interest their workers are moving about from village to village and from locality to locality.

(3) If we take the case of Sm. Prativa Mukherjee (the Respondent No. 2), the S.U.C. worker, we can clearly understand that neither she nor her party has in mind any trace of religion. In their opinion Namaz, Roza, Haj and Zakat etc. are all worthless things and as such their motto is to do away with these things. Therefore, in order to save religion she cannot be supported. Whether their intentions are in fact like this or not, can very well be understood if one looks at their Russian or Chinese (brothers). If one looks at those who are working for the Communist party or S.U.C. party in the country, their views and ways can well be understood. Naturally all those who are religious-minded Muslims can never support her.

(4) Undoubtedly the old Congress party follows the middle course. This party never interferes with religion, nor follows the policy of throwing religion into the winds.... So if we are to express the message of Allah or the Prophet, the Muslims unitedly will have to support the Congress following the middle course.

This booklet is said to have been signed by a number of Muslim gentlemen. It is not disputed before me that, if this document was distributed in the constituency in the manner alleged in the petition, there was a violation of Section 123(3) of the Representation of the People Act, 1951. Under this Sub-section one of the acts which shall be deemed to be a corrupt practice is:

The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to ''vote or refrain from voting for any person on the ground of his religion,...for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.

In Expl. (1) to this section it is stated that the expression ''agent'' includes an election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate.

Coming to para. 10(kk) of the petition in its concluding lines it is alleged:

The said booklet was printed from Paramount Press, Suri, which is owned by Janab Abdul Wahed, an agent and a person within the influence and control of the Respondent No. 1 and who issued a statement in favour of the Respondent No. 1 in this election published on January 20, 1967, in the ''Birbhum Barta'', a local weekly and a mouth-piece of the local Congress, the editor being Sri Milan Banerjee, a member of the Birbhum District Congress Committee.

Paragraph 10(kk) of the petition has been answered in para. 17 of the first Respondent''s written statement. It is necessary to set out this paragraph of the written statement as one of the principal contentions of Mr. B.C. Mitra for the Petitioner is based on this paragraph. It runs as follows:

With reference to para. 10 of the said petition and the sub-para. (kk) thereof, save that a Bengali literature in the form of a pamphlet was found circulated and save what appears therein, this Respondent denies each and every other allegation contained therein. It is denied that any agent of this Respondent or Moulavi Rousan Ali or Moulavi Md. Khalilur Rahaman or Hazi Idris or any other person or persons with the consent of this Respondent appealed to the Muslim voters by holding meetings or otherwise or the same was done in the name of religion verbally or otherwise or by'' distributing printed booklets to vote for the Respondent No. 1 or to refrain from voting in favour of the Respondent No. 2, as very untruly alleged. It is denied that this Respondent caused the said propaganda to be made through the above-mentioned persons or any person for the alleged purposes, that is alleged or at all. It is denied that the said meetings/were held at Kuitha or Sahapur or Thobagram on February 14, 1967, or in Dhananjaybati or at any Muslim locality under the said constituency on different dates or on any date, as alleged or at all. This Respondent disputes the purported translation alleged to be unofficial translation of the said booklet. It is denied that Janab Abdul Wahed was ever an agent of this Respondent or the said Md. Wahed is a person within the influence or control of this Respondent or the ''Birbhum Barta'' is a mouthpiece of local Congress. In any event, the form or contents of the said booklet was never intended or designed to bring about the promotion of or attempt to promote feelings of enmity or hatred between the different classes of the citizens of India on grounds of religion or races or caste or community or language.

Mr. B.C. Mitra contends that in para. 17 of the written statement the Respondent No. 1 has admitted that the impugned booklet was circulated in the constituency and there is no evidence that he took any steps either to prevent the circulation or to condemn the contents of the booklet. According to Mr. Mitra, on this admission alone, it is possible to hold in this petition that the election should be set aside on grounds mentioned in Section 123(3) of the Act of 1951 read with Section 100(1)(b). The Petitioner''s counsel in support of this argument has placed reliance on the judgment of the Supreme Court in Sheopat Singh Vs. Harish Chandra and Another, . This was an election petition for setting aside an election to the Rajasthan Legislative Assembly. The charge against the returned candidate was that he committed corrupt practice by procuring and using mechanical vehicles for transport of voters to and from the polling stations. It was found that on March 1, 1957, at Bholanwali jeeps procured by the returned candidate had been used to transport voters to the Bholanwali polling booths. One of the jeeps was in charge of the returned candidate''s father Hariram and another, his worker Bahadur Singh. On these facts the Supreme Court observes:

...It is difficult to imagine that after getting knowledge of this on March 1, 1957, as he must have got, the Appellant would not have prohibited the commission of such acts in future, if he did not intend to approve of them. But, as a fact, we find that such acts were repeated regularly on the polling on the 3rd, 5th, 7th and 9th March and to some of them his own agents were parties. From the above facts it is not an unreasonable inference to draw that all the above acts were committed not haphazard but by a design, and that the Appellant must have consented to them. That is the inference which the learned Judges (of the Rajasthan High Court) were entitled to draw, and being one of fact, this Court will not disturb it.--Page 1219, para. 6.

It was argued before the Supreme Court that consent to an act implied that it was given before it was done, but that knowledge of an act can only mean that it was derived after the act was done and that, therefore, knowledge cannot by itself be equated with consent. The Supreme Court to meet this argument observes:

There would have been force in this argument if all that was established was a stray act or even a number of acts committed on one day. But here the acts were numerous and extended over a number of days.

Baidyanath Banerjee, the returned candidate, was cross-examined at length on para. 17 of the written statement. He has said that he did not find pamphlets similar to Ex. E being in circulation in course of his election campaign and was not aware of the contents of this pamphlet before the day of polling. He makes a distinction between a ''booklet'' and a ''pamphlet''. He says that what he has referred to in para. 17 as a ''pamphlet'' is a pamphlet published by Jadu Roy which has also been tendered in evidence and marked Ex. C: he came to know of Ex. E, viz., the appeal to Muslim voters only when he received a copy of the election petition; and in the course of his entire election campaign he came across only one Bengali literature in the form of a pamphlet which was published by Jadu Roy and no other printed materials. His attention was pointedly drawn to the last sentence of para. 17 quoted above: His answer is:

After going through the booklet I had imbibed what had been set out there. (Vide Qs. 779-807)

Mr. B.C. Mitra has invited me to disbelieve Baidyanath Banerjee''s evidence set out above. He says that it is abundantly clear that he has admitted that the booklet was in circulation. Learned Counsel has also asked me to take into consideration the surrounding circumstances. Baidyanath admittedly was a candidate in a general election for the third time (Q. 11). He defeated Prativa Mukherjee by over 10,000 votes in 1962 (Q. 20). This time he noticed ''some restlessness'' amongst voters: the district was an agricultural district: there were cordoning and levy: it was not possible to give modified rationing in sufficient quantities: the prices of food-grains soared high along with other commodities: and "probably members of the public...were apt to be misled" till the general elections. He says:

We thought that we would win this election also with sufficient margin as we did in the past; but we think for the reasons I mentioned the voters changed their minds and cast their votes differently. There was another factor involved in my constituency. My main rival of the S.U.C. went round the villages and gave the assurance to each and every person that if the S.U.C. won they would not have to pay rent and they would be given land for which they would not have to pay, and the price of rice would fall--rice would be available at 2 seers a rupee. The labour class was also given an assurance that they would be given double their wages. In our district the labour class consists mainly of rickshaw-pullers and workers in rice mills. For these reasons I think many were misled and this was a contributing factor to the falling down of the margin. (Q. 59)

Learned Counsel for the Petitioner does not dispute the correctness of these answers of Baidyanath and submits in the light of what he has stated that he knew that the position of the Congress was not at all safe this time. Then again, says Mr. B.C. Mitra, Moulavi Abdul Wahed, it is common case, was the owner of the Paramount Press and he had considerable influence on the Muslim community: he wanted to be a candidate himself, but later on he withdrew his candidature and supported Baidyanath Banerjee and even addressed a meeting at Kendua in favour of Baidyanath: in fact, Baidyanath made a statement in ''Birbhum Barta'' explaining that Abdul Wahed had voluntarily retired from the contest without any pressure from him, unnecessarily interested persons were trying to discredit him. (Vide Qs. 753 to 760) Mr. Mitra''s point is that taking all these surrounding circumstances into consideration and the admission made in para. 17 of the written statement, there is no room for doubt that the corrupt practices alleged in para. 10(kk) of the petition were committed and, as such, this election ought to be set aside.

Even if I ignore the oral statement of Baidyanath Banerjee in answer to Qs. 779 to 807, I cannot forget that so far as corrupt practices are concerned, this trial is a quasi-criminal trial. In para. 17 of the written statement Baidyanath speaks of a ''pamphlet'' which ''was found circulated''. In para. 10(kk) of the petition there is no mention of a ''pamphlet''. All through in para. 10(kk) the word ''booklet'' has been used. I am not bothering at the moment with the dictionary meaning of pamphlet or booklet, but I notice that in para. 17 of the written statement distribution of ''printed booklets'' has been expressly denied. In the face of the above, in my opinion, it would not be proper for the Court to hold that circulation of the booklet referred to in para. 10(kk) of the petition has been admitted in para. 17 of the written statement or to apply the principles laid down by the Supreme Court in Sheopat Singh''s case Supra. To my mind, on the facts of the instant case, I should rather follow the Supreme Court''s view in Jagjit Singh v. Kartar Singh Supra.

The proper course for me, therefore, is to test the Petitioner''s witnesses on this point on their intrinsic merits and to see whether there is clear and cogent evidence on record to justify the conclusion that the corrupt practices alleged in para. 10(kk) of the petition were in fact committed.

Mr. Mitra has relied in this connection on the evidence of Ramaprosad Roy Chowdhury, S.K. Abdul Latif, Abdul Aziz, Kazi Nizamuddin, Alinur Mollah, Ali Haidar Siddiqui and Brajagopal Saha who was the S.U.C. candidate for the Parliamentary seat in that constituency.

Ramaprosad Roy Chowdhury, the Petitioner, has stated that he had seen the leaflet being distributed in several places; he had also seen several meetings in respect of the leaflet at Sahapur, Kuitha, Thobagram and Dhananjaybati: in those meetings it was freely stated that the S.U.C. was a Communist party and that the communists did not observe any religion: it was also stated that Prativa Mukherjee was a candidate on behalf of the S.U.C. and, as communists did not observe any religion, no votes should be cast in her favour: Baidyanath Banerjee was present in at least four of such meetings and in all those meetings the leaflets were distributed: the majority of the audience in those meetings were Muslims: amongst the persons who addressed these meetings were Khalilur Rahaman, Hazi Idris, Abdur Rezak and several other moulavis. (Qs. 62 to 70) The meetings were held five or six days before the election: the S.U.C. has a weekly paper called ''Awaz'': no issue of this paper was published prior to the date of election: the issue which was to have been published before the date of election was not published at all: that is why, according to Ramaprosad, no statements were published in the ''Awaz'' contradicting the contents of the impugned booklet. (Vide Qs. 214 to 218)

More than once in his evidence Ramaprosad has said that Baidyanath Banerjee was present at meetings at which appeals were orally made to the Muslims not to vote for the communists in the name of religion and leaflets were also distributed in his presence. (Vide Qs. 62 and 191). Undoubtedly, if Ramaprosad''s evidence be true, this was one of the most important facts to be alleged in the petition to establish the charge of corrupt practice against Baidyanath Banerjee. In fact, there are provisions in the Statute as well as in our rules that these particulars have to be given. Section 83(1)(b) of the Act of 1951 says that an election petition shall set forth full particulars of any corrupt practice that the Petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of such practices. In the Election Petition Rules, 1967, of our Court the same provisions have been made in Rule 9. In para. 10(kk) of the petition it is said that meetings were held at Kuitha, Sahapur, Thobagram and Dhananjaybati. But it is nowhere stated that Baidyanath Banerjee was present at these meetings or any of them. Ramaprosad Roy Chowdhury, I find, was cross-examined on this point. He has admitted that his petition was drawn by lawyers of the Calcutta High Court on materials supplied by him. But he did not offer any explanation as to why Baidyanath Banerjee''s presence at the meetings was not mentioned in the petition. (Vide Qs. 192 to 198)

Then again in Q. 213 he has said that he had reported to Prativa Mukherjee that the election offence described by him in para. 10(kk) of his petition was being committed. But Prativa Mukherjee, who is the person most vitally interested in this election, has not come to the witness box to support him. What is more interesting is that in Q. 241 he has gone to the extent of saying that at a particular public meeting Baidyanath Banerjee himself distributed the impugned booklets. But strangely enough, there is no mention of this vital fact in the petition. The obvious conclusion is that Ramaprosad Roy Chowdhury''s evidence in support of his allegations in para. 10(kk) of the petition must be rejected. But I do not want to stop here. I would deal with the evidence of the other witnesses of the Petitioner also.

The next witness I shall take up is S.K. Abdul Latif. He says that propaganda was set in motion to induce people to cast their votes in favour of the Congress. People were saying that Muslims should not cast their votes for the Communist candidate inasmuch as communism had no faith in religion. (Vide Qs. 36-37) He knows about the meeting organised by Khalilur Rahaman and Rousan Ali. (Vide Q. 30) But in Q. 22 he has said that he did not have any occasion to attend any election meeting organised on behalf of any of the contesting candidates. He received a handbill like the one which is marked as Ex. C from one Harun Rashid who lives at Suri. Harun Rashid belongs to the Congress party. He had also received another pamphlet like the one marked as Ex. E from the same Harun Rashid. He went through the second pamphlet and thought that it had been written with the sole object of misleading the Muslim masses. (Vide Qs. 38-50) He went back on his definite answer that he received pamphlets like those marked Ex. C and Ex. E from Harun Rashid in Qs. 179 & 180. So far as Ex. C is concerned he gives no answer. With respect to Ex. E he says that it was given to him by ''probably Hafiz Harun Rashid''. Obviously he had forgotten by now, what he said earlier in his deposition. In Qs. 53-61, this witness says that Baidyanath Banerjee used to carry on his election campaigns accompanied by Hazi Idris, Khalilur Rahaman and Haripada Saha. Quite a few of the impugned booklets were distributed in his village. The leaflets were distributed by Khalilur Rahaman and Hazi Idris in the presence of Baidyanath Banerjee. (Vide Qs. 53-61) Immediately thereafter in Qs. 62-63, he says that he did not see the distribution of the booklets- but had only heard of such distribution.

Abdul Latif has been a sympathiser of the S.U.C. for the last five or six years: he supported the S.U.C. in connection with teachers'' agitation: he asked people at the time of election to support the S.U.C. (Vide Qs. 72-81, 171, 175 & 178) He first said that he heard that Baidyanath Banerjee was moving from door to door in his village and he also saw it. Later on, he only says that he had heard of it. (Vide Qs. 182-192). Abdul Latif is a partisan or interested witness; his evidence is also full of contradictions and no reliance can be placed on it.

The next witness of the Petitioner on whose evidence Mr. B.C. Mitra relied was Abdul Aziz. He says that about five or six days before the date of the election there was a meeting before a mosque in his village called Thobagram: some of the moulavis spoke at the meeting: he listened to the speech of one Abdul Rahim: Baidyanath Banerjee was present at the meeting: the speakers said that the S.U.C. party had no faith in religion and no vote should be cast in favour of the S.U.C. candidate: the speakers also said:

If you cast vote in favour of the S.U.C. candidate then the Muslim religion, the mosque, the Muslims'' homestead will go to harm (Qs. 9-14).

The local Congress office at Sahapur had announced that this meeting would be held (Q. 32). At the meeting a leaflet was distributed: it was a leaflet like the one marked as Ex. E: Abdul Aziz got a copy of the leaflet: he was standing by the side of Abdur Rezak who gave him a copy of the leaflet: he does not remember the contents of the leaflet: the title of the booklet, namely, ''Appeal to all Muslim Brethren'' showed that he received a booklet of that nature. (Vide Qs. 21 to 22, 127 to 131, 154 to 163) The meeting started at about 4.30 or 5 p.m.: Aziz was not there at 4.30: he arrived when Moulavi Abdul Rahim was addressing the meeting: Abdul Rahim spoke for about 15 minutes after Aziz had arrived. (Vide Qs. 235 to 238)

From the above depositions of Abdul Aziz to which Mr. Mitra has drawn my attention it prima facie appears that there was a meeting at Thobagram at which certain Muslim speakers made appeals to the voters in the name of religion, and copies of the impugned booklet were distributed and Baidyanath Banerjee was present at the meeting. But I have to go deeper into this matter in order to be convinced of the truth of Abdul Aziz''s statement. As soon as he came to the witness box, voluntarily, he told me that on the previous day he had been intimidated by an unknown person (Q. 1). The incident occurred at about 4 o''clock in the evening when he was on the verandah of the place where he was residing in Calcutta: a man clad in dhuti was on the pavement of the street and he said to Abdul Aziz:

Come down, I shall murder you. Why have you come here to give evidence?

Abdul Aziz was not in this verandah alone, there were two others with him when the man on the pavement was threatening: all of them got frightened, went inside the room and bolted the door: they remained in that room for an hour till other people including ''Ramada'' i.e. Ramaprosad Roy Chowdhury, the Petitioner arrived: they narrated the incident to Ramaprosad: Ramaprosad went to the lawyer and ''probably'' told the lawyer about the incident: Aziz himself narrated the story to the lawyer: he cannot explain why the lawyer concerned did not inform the Court that this incident had occurred at the first sitting of the Court: the two other persons who were on the verandah when the man on the pavement was threatening were Alinur Mollah and Pana Mustafa: he did not ask Ramaprosad Roy Chowdhury to lodge a complaint with the Police: when Ramaprosad heard from him that this incident had taken place, Ramaprosad said--"In that event the lawyer would have to be informed": he does not know whether any complaint was lodged with the Police at all. Later on, he says that they could not follow what the man on the street had shouted: they only understood him to say that they were witnesses against Baidyanath Banerjee and so saying he drew out a dagger and at the sight of the dagger the persons on the verandah retreated into the room. Then he says that, first of all this man threatened the persons on the verandah orally that they would be murdered and then he drew out his knife: on the street (which it appears from his evidence was Dharamtolla Street in Central Calcutta) this man was not standing alone: there were many others moving about: in fact, the incident happened over a period of two minutes and there were so many people on the road that it was not possible to count them. (Vide Qs. 45-101)

It is indeed strange that if an incident of this nature had been reported to learned Counsel for the Petitioner before the hearing of this petition commenced, on August 30, 1967 (the day on which Abdul Aziz gave evidence), nothing was stated before me when I came into the Court room. I do not see why learned Counsel had to wait till the witness came into the box to narrate his own story. The obvious conclusion is that no such incident had occurred or at any rate it was not brought to the notice of counsel for the Petitioner as alleged by Aziz. Secondly, it is highly improbable that a man standing on Dharamtolla Street, which is one of the busy thoroughfares in this city, could threaten persons standing on a verandah upstairs not only by hurling abuses but also by drawing out a dagger without attracting the attention of the passers-by. The story narrated by Aziz appears to me to be fantastic. He was only trying to attract the Court''s sympathy by narrating a story which he could not himself sustain consistently in cross-examination. Aziz has told me certain other things which also seem to be unbelievable. In Qs. 197-200 he says that he had never worked for the Socialist Unity Centre either in the election of 1962 or 1967: he received a letter from Ramaprosad Roy Chowdhury and then came to Calcutta to tender his evidence: in that letter Ramaprosad did not tell him that he should come to Calcutta by any particular train: and he did not reply to Ramaprosad''s letter (Qs. 203-204). In this letter Ramaprosad stated that Aziz would have to come to Calcutta on Friday. Aziz took a train on Thursday evening and arrived at the Howrah station at 8 a.m. on Friday. (Vide Q. 205) He has paid his own fare to come to Calcutta (Q. 208). He is also paying for his food (Q. 209). He thought, his evidence would be taken on Friday and he would be released: that is why he came with only Rs. 20 in his pocket: the sum that he brought had been spent and he had taken a temporary loan of Rs. 15 from a co-villager called Tarapada De (Q. 210). Tarapada lives at Jadavpur where he works: Tarapada had asked him when he came to Aziz''s native place in the month of Aswin that he could board bus No. 8-B and alight at the terminus: he had also instructed him that from the terminus Aziz would take the road which leads to Tarapada''s house: Aziz said to Ramaprosad that he would go to Jadavpur to bring money from Tarapada: Ramaprosad took him to Rajabazar where he boarded bus No. 8-B: on his way back Tarapada had helped him board the necessary bus: he alighted at Sealdah (Qs. 211-220). In Q. 224 Aziz changes his previous answers. He says that he did not come back by bus: he took a train and reached the Sealdah station: he said to Ramaprosad that before leaving he would come back by train and asked Ramaprosad to wait for him at the Sealdah station.

I cannot believe that Aziz came to Calcutta for deposing before this Court at his own expense. I cannot also believe that Aziz was spending money on his food in Calcutta or that he had borrowed money to live in Calcutta in order to be able to depose in this case. He gave me the impression that he was thoroughly unreliable witness and on his evidence I cannot hold that there was any meeting at Thobagram or that the incident he alleged had occurred at this meeting in the presence of Baidyanath Banerjee.

Mr. B.C. Mitra then wanted me to consider the evidence of Alinur Molla. This witness has spoken of a meeting at Kuitha five or six days before the election at which incidents similar to those spoken of by Aziz took place in the presence of Baidyanath Banerjee. Alinur identifies Ex. E and says that these leaflets were distributed at the meeting (Qs. 22 to 24): the meeting was held in front of the mosque (Q. 9): speakers at the meeting were Khalilur Rahaman, Abdur Rezak, Abdul Rahim and others: the moulavis who addressed the meeting first spoke in Arabic and then in Bengali: it was necessary to speak in the Arabic language to prove that what they were saying was in accordance with the hadis of the Quran (Qs. 12 to 18). He is definite that Baidyanath Banerjee was present at the meeting (Qs. 208 and 259).

This witness in Q. 61 told me that he did not belong to any party; but in Q. 189 he admits that he supports and has sympathy for the S.U.C. In Qs. 127 to 133 Alinur gives me detailed description of the platform or the dais that was set up for the purpose of the alleged meeting at Kuitha. He says that there was a wooden platform or takta; to the east of the mosque there was a well and by the side of the well there was some fallow land; the platform was placed on this land; there was a fine chatai on the platform; the colour of the chatai was white; the chatai was made of date-tree leaves; the length and breadth of the chatai would be 4 cubits x 2 1/2 cubits, and seven or eight persons were sitting on this platform. It is difficult for me to believe that a witness can give such detailed descriptions several months after the meeting was held.

There is another interesting part of Alinur''s evidence which should also be referred to. He says that he came to Calcutta about ten days before the date on which he was deposing, that is, August 29, 1967; he was staying at 48 Dharamtolla Street, Calcutta: at this house there is an office, but he does not know whose office it is: with him at 48 Dharamtolla Street were also staying Pana Mustafa and Abdul Aziz; all of them, according to him, came to Calcutta equipped with money and they were meeting ''part of the expenses'' from that money; a person, whose name may be Dipak, meets ''at times'' some of the expenses; he saw Ramaprosad Roy Chowdhury in Suri; Ramaprosad Roy Chowdhury told him that he had instituted a case in which Alinur had to depose; he did not, however, tell him what Alinur was to say to the Court; Ramaprosad showed to him the booklet marked Ex. E and asked him if a leaflet had been distributed amongst Muslims in his village; he answered in the affirmative; Alinur had not been served with any subpoena (Qs. 161 to 181); he has been incurring loss in his business which he carries on in his village for about 10 days (Qs. 186).

Alinur appeared to me to be a witness who had come to tell me exactly what he was asked to say and I do not propose to accept his evidence.

I now come to the depositions of Brajagopal Saha, the Parliamentary candidate of the S.U.C. Brajagopal told me that an article was published in the ''Awaz'' (an S.U.C. paper) counteracting the Congress propoganda on the ground of religion; the article was published on February 10, 1967; he has produced the article which has been tendered and marked Ex. F. The article was written by Dr. Ali Haidar Siddiqui, a Staff member of the ''Awaz''; the occasion for publishing the article was that certain moulavis had printed an appeal in the form of a booklet to cast votes in favour of Baidya-nath Banerjee on the basis of religion, and it was necessary ''to combat this propaganda''; the booklet which the moulavis had printed was given to him by Dr. Ali Haidar Siddiqui; it was printed from the Paramount Press of which Moulavi Wahed was the proprietor; Waned in the last general election supported Baidyanath Banerji; there was no rejoinder in the ''Birbhum Barta'', the paper of the Congress party, to Ali Haidar Siddiqui''s said article in the ''Awaz'' (Qs. 5 to 35).

Ex. F which Brajagopal produced was published on February 10, 1967; but without looking into the records he could not say whether any other copy of the ''Awaz'' was published before February 19, 1967, which was the date of the election. (Vide Qs. 53-54)

In Ex. F there is no specific reference to the booklet marked Ex. E. The explanation of Brajagopal in Q. 71 is:

There is no reference to the booklet in this article but we have covered it in a general way.

In Q. 73 he says the article in the ''Awaz'' marked Ex. E

is a reply to the booklet itself as also it is a reply to all the propaganda that was being carried on by them (the Congress party) on the ground of religion.

These explanations of Brajagopal did not appeal to me. I put to him further questions on this point but his answers did not appear to me'' to be satisfactory. (Vide Qs. 72 to 103) If Ex. E was a reply to the booklet, I do not see why it was not specifically referred to. Secondly, Brajagopal by stating that the ''booklet'' was answered by an article in the ''Awaz'' was directly contradicting Ramaprosad Roy Chowdhury, the Petitioner. Ramaprosad has said that the booklet was circulated only a few days before the election and there was no time to give a reply in writing. Moreover, there was some trouble with regard to the publication of the last issue of the ''Awaz'' before the election. When Brajagopal''s attention is drawn to this evidence of Ramaprosad, Brajagopal says in Q. 58:

Ramaprosad had no duty whatsoever with regard to the publication of the paper and most of the time he was in the village and that is why I say it was not possible for him to say whether this paper was published at a certain time or not.

This answer of Brajagopal also I am unable to accept. Manick Mukherjee, a brother of Prativa Mukherjee, who was her election agent, has deposed before me. He has told me in Q. 146 that no individual is taking interest in this election petition. The party is looking after it. In other words, it is the S.U.C party which is conducting this litigation and if Ex. F was an answer to Ex. E, the contradictions between Ramaprosad''s evidence and Brajagopal''s evidence appear to be rather strange. The only conclusion in the premises that I can draw is that Ex. F was not an answer to Ex. E at all.

Let us now come to the evidence of Dr. AM Haider Siddiqui who was the writer of the article marked Ex. F. He has stated that Abdul Wahed had shown the impugned booklet to him and he in-his turn showed it to Brajagopal Saha. Abdul Wahed said to him that this booklet was published in consultation with the local Congress and Baidyanath Banerjee. Siddiqui cannot say whether Abdul Wahed knew that Siddiqui was a worker of the S.U.C. (Qs. 9 to 12). In Q. 14 Siddiqui asserts that he was not canvassing for the candidate of the S.U.C. in his area. His political activities were confined to writing in the newspaper called ''Awaz'' (Q. 16). Abdul Wahed came to him with several copies of the booklet which he was distributing: he gave one of the copies to him when he came to his dispensary for treatment (Q. 18). (Incidentally, Siddiqui is a homeopathic practitioner at Suri). He says that he did not disclose his political views to Abdul Wahed (Q. 19). He was a secret member of the S.U.C. (Q. 23). He received the pamphlet from Wahed between 9 and 10 a.m. either on February 7 or 8 (Q. 135). When he is asked about the absence of reference in Ex. F of the booklet marked Ex. E he says:

The Muslims generally have faith in moulavis and if I mention any of these names in my article the object with which that pamphlet had been written would be achieved (Q. 154).

His explanation does not seem to be convincing. But assuming his apprehension was justified he could have easily attacked Ex. E without mentioning the name of any moulavi. He could have also said that printed booklets containing appeals in the name of religion were being mischievously distributed in Congress meetings. But there is no such indication in his articles.

I have already said that Siddiqui told me that he was a secret worker of the S.U.C. and did not disclose his political identity to Abdul Wahed: he said further that he did not canvass for any of the S.U.C. candidates: he kept his political inclination within himself and it was only after the United Front Government was constituted that he gave vent to his views openly (Q. 96).

Obviously he gave these answers to avoid the criticism that if he was a known S.U.C. worker, Abdul Wahed would not go to him with the booklet or hand over a copy of the booklet to him or disclose to him that the booklet had been published in consultation with the local Congress and also Baidyanath Banerjee. But it was apparent from what transpired later that he was'' not a witness of truth. In the copy of the ''Awaz'' produced by Brajagopal Saha there is an advertisement of his dispensary in Suri. (Vide Ex. 2/a) He admits in Qs. 212-220 that for 2 or 3 months from the date he was deposing (i.e. August 25, 1967) he had been advertising in ''Awaz''. He had also advertised in ''Awaz'' before the general elections. He paid for these advertisements. Now ''Awaz'' is a party paper and, generally, only sympathisers or supporters of a party advertise their trades in such party papers. But I do not want to reach my conclusion that he was openly known to be an S.U.C. worker because of these advertisements alone; although in Qs. 232-243 he has admitted that there are other party papers in Suri, but he gave advertisements only in the ''Awaz''.

At p. 3 of Ex. F which Brajagopal Saha has produced there is a report of an election meeting in support of the S.U.C. candidates held at Sahapur Dak-Bunglow on February 7, 1967. In this report it is stated that Dr. Ali Haider Siddiqui also addressed the meeting. Siddiqui was asked about this meeting in cross-examination. He says that he failed to attend the meeting and the report was incorrect (Q. 269). He admits, however, that his name was advertised as a speaker for that meeting (Qs. 271 and 272). In the same Ex. F at p. 3 there is another report of a meeting held at Banasankha on behalf of the S.U.C. on February 9, 1967. In this report also it is mentioned that one of the speakers was Dr. Ali Haider Siddiqui. Confronted in cross-examination with this report Siddiqui says that he does not know a place called Banasankha: he has no recollection as to whether he spoke at a meeting at Banasankha, but he remembers that he agreed to attend another meeting (Qs. 194 to 196).

It is evident, therefore, that Ali Haider Siddiqui was a well-known and prominent worker of the Socialist Unity Centre at Suri and one of its principal speakers at the meetings that were convened in support of the S.U.C. candidates. In the circumstances, his evidence that Abdul Wahed came and gave the booklet to him or told him that it was printed at the instance of the Congress or Baidyanath Banerjee, appeared to me to be improbable. There is one other, reason why I have to reject his testimony. In Qs. 33 to 36 Ali Haider Siddiqui has stated that both Prativa Mukherjee and Brajagopal Saha gave instructions to him to write the article published in the ''Awaz'' on February 10, 1967, marked Ex. F. Brajagopal Saha came first, and fifteen minutes later Prativa Mukherjee arrived, and both Prativa and Brajagopal specifically told him that he should not name anyone in the article or hurt anyone''s sentiment. In another connection I have observed that Prativa Mukherjee is the person most vitally interested in the result of this petition. She has not stepped into the witness box. If, what Siddiqui says be true, it was natural for the Court to expect that Prativa would come to support him. I do not know why she did not appear.

In the premises aforesaid I am unable to rely on the evidence of Ali Haider Siddiqui. An article (Ex. F) may have been published in the ''Awaz'', but this article, it has not been proved before me, was in reply to the booklet referred to in para. 10 (kk) of the petition which was given to Ali Haider Siddiqui by Abdul Wahed, the proprietor of the Paramount Press.

The only other witness of the Petitioner was Kazi Nizamuddin. Learned Counsel for the Petitioner stated that he was an independent and disinterested witness and at least his evidence should be accepted by this Court. Kazi Nizamuddin''s deposition is that a meeting was held in the drawing room of Md. Ahsan, the president of the Sahapur Mondal Congress Committee (Qs. 5 and 6). The speakers at the meeting were Moulavi Abdul Rezak, Hazi Idris and. Moulavi Abdul Rahim (Q. 7). Moulavi Rezak said at the meeting inter alia that the Muslims should not vote for the communist candidate because communists do not believe in God and have no faith in religion or Allah (Q. 8). Baidyanath Banerjee was present at the meeting (Q. 9). Jadu Roy an important member of the District Congress Committee was also present (Q. 11). Baidyanath himself did not ''exactly'' appeal to Muslims on the ground of religion but he said that the ''audience'' should "keep in mind what the moulavis had said" (Qs. 15 and 16). Idris also spoke in the same vein (Q. 31). About 50 or 60 people were present at the meeting (Q. 18). Apart from the meeting these persons visited his village again and on the day of the subsequent visit they distributed certain leaflets (Q. 32). The moulavis and Baidyanath Banerjee were present when the leaflets were distributed (Q. 36). Nizamuddin was present (Q. 33) and received a copy of the booklet (Q. 35). He had got the booklet with him and produced it in Court (Q. 37).

Mr. B.C. Mitra submits that unhesitatingly I should accept the evidence of Kazi Nizamuddin as he cannot be said to be a partisan witness.

I am not so sure that Nizamuddin is altogether a disinterested witness. Rousan Ali, one of the Petitioner''s witnesses has told me that S.K. Sajman was acting in this election on behalf of Baidyanath Banerjee (Q. 117). Sajman and Idris invited Rousan Ali and others on many occasions to join hands with the Congress (Q. 118). Baidyanath Pal, another witness of the Petitioner, tells me that Sajman was ''working in the Congress''. On Ashar 18, 1374 B.S., he saw a publication in the Ananda Bazar Patrika that Sajman was coming from Suri when he was severely assaulted and injured (Qs. 70 to 72). A criminal case is pending against Baidyanath for inflicting cutting injuries on Sajman; along with Baidyanath the other accused are Samsudjoha, who was deposed before me, Kazi Nizamuddin and many others (Qs. 78-88). Sajman was sent to hospital on the same day, that is on June 29, 1967: he was let out of hospital 10 or 12 days thereafter (Qs. 106-113). Nizamuddin also in Qs. 58-72 has admitted that he is one of the accused in the case of an alleged assault on Sajman; he admits that Sajman was admitted to hospital on account of grievous hurt (Qs. 58-62). He does not know if Sajman came out of hospital seven days ago (Q. 65). In Q. 66 when he is asked whether Sajman lives in the same village as he does, his answer is:

How does that matter if he resides in the same village? He has falsely implicated us in a case. So why should we bother to keep information of him?

My impression was that Nizamuddin out of grudge for Sajman who had ''falsely'' implicated him in a criminal case had come to depose in favour of the Petitioner in this election petition. What I mean to say is that he is not as disinterested a witness as is being contended on behalf of the Petitioner. Moreover, there are some glaring contradictions between Nizamuddin''s case and Ramaprosad''s case. In para. 10(kk) of the petition it is alleged that one of the public meetings in which the said printed booklets were distributed was held at Sahapur. Nizamuddin says that this meeting was held in the drawing room of Ahsan; and, according to him, the booklets were distributed not on the day of the meeting but on a subsequent occasion when the moulavis and Baidyanath came back (Q. 32). Secondly, Ramaprosad''s evidence, as we have seen above, is that he was present at the meeting at Sahapur; but Nizamuddin''s case is that Ramaprosad was not present (Q. 81). Thirdly, it was rather strange that Nizamuddin on the witness box brought out of his pocket the booklet said to have been published by the- Paramount Press. Questions 103-105 of his evidence and his answers thereto are interesting. These questions and answers are as follows:

Q. 103. Who asked you to preserve the pamphlet since you are not very much interested in the election ?

A. No question of preservation. It was in my pocket.

Q. 104. Was it in your pocket constantly for the last six months?

A. Not that.

Q. 105. Were you told what sort of evidence you would have to give to this case?

A. Yes. I was told what evidence I should give, but then I said to them that I could not do that. I can only depose to what I know. I knew nothing except about the two meetings which were held and in which meetings the moulavis had made their speeches.

These answers do not require any comments. He has tried to say that suggestions were made to him as to the nature of the evidence he was to give in this Court: some of these suggestions were untrue: he protested and said that he would depose only about incidents that he knew of. In Q. 77 he states that Ramaprosad Roy Chowdhury asked him to give evidence in this case.

In the permises, it is clear that Nizamuddin was not an independent witness; on material points he has contradicted the Petitioner himself; and he was brought into the witness-box after he was properly tutored probably by Ramaprosad. I am unable to rely on his evidence.

Incidentally, I should also observe that Abdul Wahed''s name does not appear on the printed booklet (Ex. E) as one of the signatories to the appeal to the Muslim voters. The booklet is said to have been printed from the Paramount Press by one Janab Mohiuddin. In my view, on the facts of this case, the Petitioner should have attempted to serve a subpoena on Mohiuddin asking him to produce the manuscript of the booklet and also to appear in person to depose on the circumstances in which the booklet was printed. But I do not know why the Petitioner did not adopt this obvious course. If the subpoena had been returned unserved or if Mohiuddin had not appeared inspite of service of the subpoena different consequences might have ensued.

On evaluation of the evidence led on behalf of the Petitioner, it seems to me that the Petitioner has failed to place before this Court clear cogent and reliable evidence to prove his allegations in para. 10(kk) of the petition.

I have also the oral evidence of Baidyanath Banerjee, the Respondent No. 1, Ramjan Ukil, Abdul Rashid and Kazi Md. Ahsan who have deposed before me to controvert the allegations in para. 10(kk) of the petition. Baidyanath Banerjee has said that it is not correct that Moulavi Rousan Ali, Moulavi Khalilur Rahaman and Idris with Baidyanath''s consent appealed to the Muslim voters by holding meetings in the name of Islam: it is not also correct that booklets like Ex. E were distributed or that he approved of such distribution. On February 14, 1967, according to Baidyanath, there was no meeting either in Kendua or at Tapaspur. Two public meetings were held at Sahapur, one towards the end of December and the other a few days before the election. Baidyanath was present at these meetings. There was no ''big public meeting'' at Dhananjaybati: there was a ground in front of a primary school and a meeting was held there which was attended by about 100 or 150 people: but no appeal to the Muslims who congregated there was made in the name of Islam. (Vide Qs. 303-310) In Qs. 327-329 Baidyanath also says that on February 14, 1967, there was no meeting at Kuitha, Thobagram or. Dhananjaybati. He has also denied the allegation that any appeal was made to the Muslims in the name of religion or that it was stated by any of the moulavis that votes for the communists would be votes against Islam.

The first Respondent''s witness Ramjan Ukil is a mason at Kuitha (Qs. 3-4). There is a mosque in his village about 30 cubits away from his residence (Q. 6). He denies that any meeting was held before this mosque prior to the general election or that moulavis addressed such meetings in the name of religion (Qs. 7-8 & 64-65). He has never seen a document like Ex. E: he does not know that this type of document was distributed in his village amongst the Muslims (Qs. 66-67).

The first Respondent also called Abdul Rashid who is a resident of Thobagram (Q. 4). He says that there was no meeting near the mosque in his village at which moulavis were present either in January or in February 1967: he has never seen any booklet like the one marked Ex. E: he did not see any such booklet being distributed in his village (Qs. 12-16).

The next witness of the first Respondent I wish to refer to is Kazi Md. Ahsan. He happens to be the resident of the Joshpur Mondal Congress Committee (Q. 4). Rousan Ali, one of the Petitioner''s witnesses, has said that Ahsan is a ''respectable person'' in his area (Q. 83). From Ahsan''s answer to Q. 54 he also appears to be a person of philanthropic disposition. In Qs. 169-171, I reminded him that he was on oath and asked him whether any one on behalf of the Congress party hid told the Muslims in his area that communists did not believe in religion and if votes were cast in favour of Communist candidates the Muslim religion would be at stake. I also asked him whether he himself had told any Muslim voter that voting for the communists meant voting against Islam. His negative answers to these questions were emphatic.

Upon weighing the evidence of witnesses for both the parties on this particular point I am inclined to take the view that the Petitioner''s case made in para. 10(kk) of the petition cannot be accepted, and I hold that no corrupt practice was committed by or with the consent of the Respondent No. 1 or in the interest of the Respondent No. 1 as alleged in para. 10(kk) of the petition.

Learned Counsel for the Petitioner then addressed me on para. 10(i) of the petition.

In this paragraph it is, inter alia, alleged that whenever the Respondent No. 1 apprehended that in any particular area the voters might not vote for him, he himself, his agent Jadu Roy and his other agents including Deben Mukherjee, a district leader of the Congress party and Sisir Mukherjee, an office-bearer of the Abinashpur Mondal Congress Committee with his consent used to make a fraudulent and false propaganda to the effect that the voters might cast two votes, one for the Respondent No. 2 (Prativa Mukherjee) and the other for the Respondent No. 1 (Baidyanath Banerjee) as each voter had two votes. The Petitioner alleges that innocent villagers were thus misled or deceived and had put two marks on ballot papers on the symbols of both the Respondent No. 1 and the Respondent No. 2 and all these ballot papers had been rejected. The Assistant Registrar attached to this Court has found 826 ballot papers containing markings in favour of both the Respondent No. 1 and the Respondent No. 2. All these ballot papers have been tendered collectively by consent of parties and marked as Ex. H. Mr. Haldar appearing on behalf of the Petitioner drew my attention first to the evidence of the Petitioner himself in support of the averments in para. 10(i). In Qs. 58 and 59 (both leading questions) Ramaprosad Roy Chowdhury has said that there was an attempt on behalf of Baidyanath Banerjee to induce voters to cast one vote in his favour and another vote in favour of Prativa Mukherjee. On his way to Sahapur, at Banasankha Bayenpara, Ramaprosad heard Baidyanath making such requests. The Petitioner''s counsel said to me that Ramaprosad was not cross-examined on this incident. But I do not think this is a correct submission. I find there was specific cross-examination on this point in Os. 183 to 186.

The only other witness of the Petitioner who spoke about this matter was Gayatri Mukherjee, a sister-in-law of Prativa Mukherjee who had worked for Prativa in her constituency during the last general election. This witness hasstated that she received complaints that voters were being asked to cast two votes on each ballot paper (Q. 46). In Q. 47 she gives the names of certain persons like Nepal Majhi''s mother, wife of Motilal Bauri and wife of Abdul Hai, who made those complaints to her; but none of these witnesses has been called to support the testimony of Gayatri Mukherjee.

Baidyanath Banerjee in Qs. 251 and 252 has denied what Ramaprosad has said in answer to his Qs. 58 and 59 I have already referred to.

The Petitioner''s counsel has argued that Jadu Roy, Deben Mukherjee and Sisir Mukherjee were not called by the Respondent No. 1 to answer the allegations made against them in para. 10(i) of the petition, but I do not see why they should have been called at all: There might have been allegations against them in the petition, but neither the Petitioner nor any of his witnesses has made any such allegation from the witness box. In these circumstances, the comment of the Petitioner''s counsel on the absence of Jadu Roy, Deben Mukherjee and Sisir Mukherjee appears to be without substance.

To my mind, it is dangerous for any candidate to make a general propaganda amongst villagers that they were entitled to cast two votes instead of one. If such a propaganda goes round, it may also react against the person making it. The story of Ramaprosad appears to me improbable and the perfunctory manner in which he has sought to prove this allegation convinced me that'' what he was. saying was not true. In the premises, I hold that there was no corrupt practice by or with the consent of the Respondent No. 1 as alleged in para. 10(i) of the petition.

The Petitioner''s counsel then came to para. 10(f). In this paragraph the allegations inter alia are that in booth No. 65, located at the Sahapur Co-operative Dak-Bungalow, there was a long queue of voters at about 4.30 p.m.; the presiding officer distributed slips to the persons who had arrived and were waiting in the queue at 4.30 p.m. so that they might be allowed to vote after 4.30 p.m.; then a group of persons headed by several Congressmen including Kazi Md. Ahsan, president of the Sahapur Mondal Congress Committee, Palwan, a son of the Respondent No. 1 Sheikh Sajman, Sheikh Idris, Sheikh Siai, Sheikh Ahid, all agents of the Respondent No. 1, the last-named four persons being notorious criminals--began to assault with lathis the persons standing in the queue: there was a violent breach of the peace and the slip-holders ran away from-the place for their personal safety, without casting their votes. It is alleged further that there was a bamboo grove near about and the rowdies cut down 50 pieces of bamboos and used them as their weapons: as a result of such breach of the peace the polling in the booth was abandoned: the seriousness of the situation demanded the presence of the District Magistrate who was the returning officer, and he with high officials had to visit the spot to bring the situation under control: the news of the disturbance spread throughout the locality: and voters who were waiting in queues at booths Nos. 63, 64 and 66 also left their booths without exercising their franchise.

Learned Counsel for the Petitioner on the basis of these allegations invited my attention to Section 123(2) of the Representation of the People Act, 1951. Under this section undue influence is a corrupt practice. The Sub-section says that undue influence means any direct or indirect interference or attempt to interfere on the part of the candidate or his agent or of any other person with the consent of the candidate or his election agent with the free exercise of any electoral right. Counsel for the Petitioner also submitted to me that the presiding officer of the polling station had violated Section 57 of the Act of 1951. It is in evidence that several hours after 4.30 p.m. polling was resumed; but the presiding officer could not do that; his clear duty was to adjourn the poll which was interrupted or obstructed by riot or open violence in order that the polling might take place on some other date in terms of Section 57 of the said Act. Learned Counsel urged that in these circumstances this election ought to be set aside u/s 100(1)(b), Section 100(1)(d)(ii) and Section 100(1)(d)(iv) of the Act of 1951.

In para. 12 of the written statement of the Respondent No. 1 these allegations have been denied. The first Respondent''s case is that polling had taken place satisfactorily till 4.30 p.m.; thereafter various persons wanted to cast their votes and started illegal and wrongful attempts to approach the polling officer whereupon steps were taken by the authorities and there was no further breach of the peace. The Respondent No. 1 denies that polling was abandoned or that there was any contravention of Section 57 of the 1951 Act.

Let us now examine the Petitioner''s evidence as placed before me by Mr. Haldar. Ramaprosad Roy Chowdhury has stated that Sheikh Rousan was Prativa''s polling agent at the Sahapur Co-operative Dak-Bungalow. Ramaprosad had heard that when the voting was nearly coming to an end, i.e., at about 4.30 p.m., the presiding officer was handing over identification slips to the persons who were in the queue. At this point of time a batch of persons under the learedship of Kazi Md. Ahsan, who was a local Congress leader, and a few other criminals accompanied by Baidyanath''s son Palwan and another batch of about 50 or 60 persons came with lathis and other things. They jumped on the voters and started beating them up. The voters began to run away out of fear: there was a serious disturbance: the District Magistrate and the Superintendent of Police arrived at about 7.30 p.m. when the disturbance had abated a little and the polling remained suspended for a total period of four hours. (Vide Qs. 38 to 42)

The only comment I make on Ramaprosad''s evidence is that in annex. B to the petition he has set out the names of some of the voters who failed to exercise their franchise on account of the disturbance aforesaid; but he did not call any of them to tell me that they were prevented from voting by the riotous activities of supporters of the Congress party. I should also observe that annex. B has been referred to in para. 10(ff) of the petition which is verified as true to Ramaprosad''s knowledge.

Mr. Haldar then asked me to look at the evidence of Rousan Ali. He says that after 4.30 p.m. a fight started: there were three parties in the contest and all of them fought: there were certain marked criminals who were working on behalf of the Congress: they were beating up the voters; and the voters fled from the queue with slips in their hands given to them by the presiding officer. At this point of time about 200 people had queued up.: a certain number of them fled, but the others remained. Those who remained took courage and stayed there to exercise their votes. (Vide Qs. 8-13) In Qs. 14-15 he has tried to say that about 170 people went away, without casting their votes. There was no voting, he says, between 4 p.m. and 7 p.m. After 7 p.m. the Police had arrived and, thereafter, voting started, and only 30 people voted after the arrival of the Police. (Vide Qs. 33-36)

This Rousan Ali in the very first question put to him says that he had nothing to do with the general election but was the polling agent of Prativa Mukherjee. His answers to Qs. 8-13 are very shaky. He says that persons belonging to all the three parties started fighting. He also says (Q. 11):

It was not known as to which of those persons would cast their votes for which party.

This answer, I thought, was damaging to the Petitioner''s case. If it were known that all the persons in the queue would vote against the Congress, one could understand the Congress supporters beating them up. But if that was not known, no supporter of any political party in his senses would start assaulting voters. This view of mine was supported later on by Rousan Ali himself. He says in Q. 40 that he knew that in his area the Congress was likely to do well. He repeats in Q. 41 that he knew that the Congress was likely to get the majority of votes. But in Q. 42 he says that Congress criminals

had beaten up the people--probably the persons who had indulged in beating the people were of opinion that those persons whom they were beating up had been working for other parties.

Firstly, Rousan Ali begins his answer to Q. 42 by the word ''probably''. Secondly, it is unbelieveable that all the 200 voters in the queue were thought to be workers of other parties. Rousan Ali again changed his answers in Qs. 44-46: he says that in his area half of the population was Muslim and the majority of them was supporting the Congress. He knows that in the booth at the Sahapur Co-operative Dak-Bungalow the Congress got the majority of votes (Q. 49). In Q. 58 he admits that the Congress workers knew that they would get the majority. He admits further in Q.59 that it was in the interest of the Congress party that the polling at the Sahapur Dak-Bungalow took place peacefully. According to Rousan Ali the polling continued till 10 p.m. (Q. 65). He knows two criminals of the Congress, viz., Sajman and Idris (Qs. 69-71). He also knows that the Congress worker in his village was Kazi Md. Ahsan (Q. 71). He admits, as I have said, that Kazi Md. Ahsan is a respectable person in his area (Q. 83). It is strange that this ''respectable person'' led a riotous mob to beat up voters standing in the queue at 4.30 p.m. as Rousan Ali tried to prove. I am afraid I cannot rely on his evidence.

Mr. Haldar then asked me to look at the evidence of Baidyanath Pal. This witness also saw that at about 4.30 p.m. Md. Ahsan, Palwan and others and certain goondas, namely, Sajman, Idris, Ahid, Siai and many others armed with lathis were assaulting the voters (Q. 46). Palwan, Baidyanath''s son, was not actually beating but he was standing there (Q. 48). He also noticed that the voters were fleeing hither and thither and group consultations were going on (Q. 57). He noticed that at the time when this scuffle was going on, Samsudjoha, the agent of Sri Mihirlal Chatterjee, came out of the polling booth: he asked Samsudjoha why he had come out: Samsudjoha told him that as the scuffle was going on, voting had been suspended and he had come out of the polling booth out of fear (Qs. 60 to 62). He came back to the polling station at about 7 or 7.30 p.m.: he saw (a) Md. Ahsan, (b) S.K. Sajman, (c) Samsudjoha and others seated there: immediately thereafter he withdraws the name of Samsudjoha: the Police arrived at 8 p.m.: the voting was resumed after the Police and the District Magistrate arrived on the spot (Qs. 65 to 69).

This witness has stated that on Ashar 18, 1374 B.S. he had read in the Ananda Bazar Patrika that Sajman had been severely assaulted and injured while coming from Suri (Qs. 70 to 72); and there is a criminal case pending against him in which it has been alleged that cutting injuries were inflicted on Sajman on this occasion by him, Samsudjoha and Kazi Nizamuddin and many others (Qs. 85 to 88). He admits that this assault on Sajman was also published in the ''Birbhum Barta'' of Suri (Q. 94). The reason why Baidyanath Pal had come to give evidence in this case became clear to me when I heard his answers to the above questions. He has a grudge against Sajman who had implicated him in the criminal case. Baidyanath gave his evidence on August 22, 1967, which was a Tuesday; on the Friday before that, he says, the summons to him to give evidence was served on him (Qs. 127 to 128). The manner in which the summons was served is rather interesting. He came to this Court to see a lawyer; he was asked by the lawyer to wait; and when he was waiting for the lawyer certain persons on behalf of Ramaprosad Roy Chowdhury met him and gave him the summons. The lawyer''s name is Sri Sudhis Roy, and Sri Bhakti Bhusan Mondal, an Advocate of this Court, was to come to Calcutta to contact his lawyer in respect of a case that was going on. This was a case in which he had figured in the newspaper (I believe he was referring to the case against him instituted for alleged assault on Sajman). All on a sudden a person met him and served him with the summons. (Vide Qs. 127 to 134) Baidyanath Pal has mentioned in Qs. 78 and 79 the name of a person called Abdus Salam on whose hands certain blows with lathis had fallen when the disturbances were going on. This Abdus Salam had also deposed before me. He has said that when he was standing in the queue there was a scuffle and he was slightly injured; he left the place immediately and could not say if there were disturbances later: he could not also say who inflicted the injury on his hand: he did not think it necessary to inform the Police because the injury was not serious: he did not also report to anyone that there was a scuffle and the voters had run away (Qs. 54 to 60). I must give this credit to Baidyanath Pal that he also said in answer to Q. 78 when he was asked as to whether he had made any enquiries about the effect of this incident of beating as a member of the Sahapur Anchal Pancha-yat particularly enquiries relating to persons in his own village who were injured, his answer was

none was injured so to say, but lathi blows fell on the hands of two or three people (Q. 178).

By this answer Baidyanath has given a complete go-by to the serious or gruesome nature of the disturbances described in para. 10(f) of the petition I have already referred to.

The next witness of the Petitioner on whose evidence reliance was placed by Mr. Haldar was Abdus Salam. He arrived at the Sahapur Dak-Bungalow at about 12.30 or 1 p.m. (Q. 5). Disturbances started at 3.30 or 4 p.m. approximately, and he went away (Qs. 7 and 8). The other voters at the booth also left the place (Q. 9). The presiding officer had issued a slip to him (Q. 11). At 9 p.m. he showed that slip to the presiding officer and had cast his vote (Q. 12). According to him the Congress workers started the disturbances (Q. 13). The disturbances took place after distribution of slips (Q. 26). After he left the polling booth he did not go home: he went to a tea shop: he was not severely hurt but slightly injured (Q. 40). He was at the tea stall till 9 p.m. When people started talking that the Police had arrived and voting had been started and he was asked to exercise his vote, he went to the polling booth with the slip in his possession to cast his vote. (Vide Q. 50) As I have already said, he did riot think it necessary to inform the Police that he had been injured because his injury was not serious (Q. 59).

Abdus Salam''s evidence is of absolutely no use in view of the answers that he gave to Qs. 52-53, put to him by learned Counsel for the Respondent No. 1. These questions and answers run thus:

Q. 52. My client tells me that the voting continued smoothly throughout the day and it was only after 4-30 p.m. when certain persons wanted to enter the polling booth that stopped them from entering the polling booth because that was after 4.30 p.m.?

A. I was not there at that time.

Q. 53. So you cannot contradict me if I say so?

A. I cannot.

The next witness of Mr. Haldar was Samsudjoha. He was the polling agent of Mihirlal Chatterjee, the third candidate in this election (Q. 1). He accompanied the presiding officer when the presiding officer distributed slips amongst voters (Q. 6). The number of slips would not be more than 200. Then he corrects himself and says: Not less than 200 at any rate. (Vide Q. 10) After the voting had started and after

we had taken our seats inside the polling booth, we heard certain disturbances (Q. 11).

At the sight of the disturbances Samsudjoha went home (Q. 12). Possibly the fight frightened him (Q. 13). Polling was suspended when he left the polling station (Q. 14).

It is manifest that Samsudjoha has not been able to prove what the Petitioner has stated in para. 10(f) except that he talks of certain disturbances. I should also add that Samsudjoha is a co-accused in the Sajman case and he has admitted that in cross-examination. He surrendered himself in Court and has been granted bail upon furnishing security to the extent of Rs. 1,000. The complaint against him is that he gave directions for the assault on Sajman. (Vide Qs. 16-28) He was asked to give evidence by Ramaprosad Roy Chowdhury, the Petitioner. Ramaprosad went round his village and requested him to give evidence. (Vide Qs. 29-30) Ramaprosad asked him to depose about disturbances that took place on February 19, viz., on the day of the election: he was asked to depose what he knew (Q. 31). He frankly admits that he does not know in details about the disturbances (Q. 32).

Mr. Haldar lastly wanted me to consider the evidence of Mrinal Kanti Kar Gupta, the District Magistrite of Birbhum, who was the returning officer.

He says that he received reports of disturbances from various polling stations and polling booths. He did not exactly remember from which polling stations and which polling booths he received reports (Q. 2). In Q. 23 the report of the presiding officer of booth No. 65 was shown to him to refresh his memory. In Q. 27 he says inter alia:

In this case the voters had formed a queue and when we went there we found all the trouble was over and polling was being done peacefully, and when we enquired about it, the presiding officer told that a lot of people wanted to vote without standing in the queue. That was what the presiding officer told us at that time.

When he visited the place, at least 50 people were in the queue and that was at about 8 p.m. (Qs, 27 to 30). There was a large number of people outside but there was no disturbance (Q. 31). He does not remember when the disturbance came to an end. It was about an hour before he reached the place (Q. 32).

Kar Gupta''s evidence, therefore, does not improve the matter any further.

On behalf of Respondent No. 1 there is the evidence of Baidyanath Banerjee and Kazi Md. Ahsan. Baidyanath says that he reached the Sahapur booth at about 5 p.m. (Q. 180). He saw that a few persons were within the boundary and they had already been given slips; he went into the booth to make enquiries of his polling agent and found that voting was going on. When he came out of the booth he noticed that about 10 to 15 persons outside the boundary were clamouring that they would also exercise their votes. The presiding officer was telling them that as they had turned up late, they would not be allowed to vote. He did not anticipate that any row would take place. The presiding officer said to him that he would see to it that the queue would be formed properly and the voting would continue peacefully. The people who had assembled outside were saying that they would cast their votes even if they had arrived late. (Vide Qs. 181 and 182) Baidyanath did not see any untoward incident: he visited the Congress camp outside the polling arena and found Kazi Md. Ahsan and a few others there: at some distance away from his camp there were camps of the S.U.C. and of Mihirlal Chatterjee: in his camp he saw only Kazi Md. Ahsan but did not see the other persons named in the petition, namely, S.K. Siai, S.K. Idris, S.K. Sajman, or his son Palwan (Qs. 183 to 188). Palwan on the day of election was in the Abinashpur booth all through. When he visited the booth the presiding officer did not inform him that polling had been suspended. (See Q. 827) So long as he was there and so far as his report from the presiding officer was concerned, there was no breach of the peace up to 5 p.m. (Q.8.28).

Kazi Md. Ahsan in his evidence denies the charges against him and says in Qs. 567 to 571 that at about 5.30 p.m. certain voters in the queue were clamouring that the process of casting votes should be expedited. The Police arrived at 6 p.m. He came out of the Congress camp and went up to a husking machine that was there. He was joined by S.U.C. workers as well as workers of Mihir Babu who were all watching what was happening. The presiding officer with the help of dafadars and chowkidars had already managed the crowd to a great extent. Then the Police arrived and put the crowd in order. Thereafter the District Magistrate arrived and then the atmosphere was peaceful. The District Magistrate stayed for 3 or 4 minutes and thereafter left. Ahsan did not speak to the District Magistrate.

It is unnecessary for me to make any comments on the evidence of Baidyanath Banerjee and Kazi Md. Ahsan. From what have discussed about it is clear that the Petitioner has miserably failed to prove his statements in para. 10(f) of the petition. The only person who could have disinterestedly told me what had actually happened was the presiding officer. A report of this presiding officer was shown to the returning officer when he came into the witness box. But for reasons best known to the Petitioner, the presiding officer was not summoned. My inference is that his evidence would have gone against the Petitioner. Even if it were possible for me to hold that certain supporters of Baidyanath Banerjee had interfered with the free exercise of electoral rights of voters, at best, it would have been a corrupt practice committed in the interests of the returned candidate by his agents provided that it were proved that the persons named in the petition were the returned candidate''s agents within the meaning of Section 123 of the Act of 1951. In that event, the Petitioner had to show that the result of the election had been materially affected by the said interference on the part of the returned candidate''s agents. Now Rousan Ali, the polling agent of Prativa Mukherjee, told me in Q. 15 that about 170 people went away without casting their votes. Obviously, the result of the election was not materially affected by such interference with their electoral rights inasmuch as Baidyanath Banerjee had won by 400 votes.

In my opinion, therefore, corrupt practices alleged in para. 10(f) of the petition have not been established, and I answer the issues raised therein in the negative.

Learned Counsel for the Petitioner then came to para. 10(h). In this paragraph it is alleged, inter alia, that the Bansjore polling station was a stronghold of the Socialist Unity Centre: in booth No. 13 at the Bansjore Primary School, Chakravarty and Kabir Hossain, agents of Respondent No. 1, tried to prevent voters from casting their votes. They openly terrorised the voters who had assembled at the polling station that they would get all of them arrested by the Police as they were supporters of the Respondent No. 2. But when terrorising failed, they made a false complaint to the presiding officer and got the polling stopped for sometime. At the persuasion of Prativa Mukherjee''s agents the voting was resumed. Finally, Kabir Hossain and Jamini Chakravarty approached the Police in the name of the Respondent No. 1; and with a view to add a colour of reality to their threats, they procured or caused to be procured a Police force to visit the polling station although there was no breach of the peace and the situation was quite normal. The sight of the Police in the wake of the threat of arrest held out by Kabir Hossain and Jamini Chakravarty made the illiterate voters panicky and they fled away from the spot without casting their votes. The number of such persons who were supporters of the Respondent No. 2 will be approximately 100 and the names of some of them have been stated in annex. E to the petition. In this paragraph it is further alleged that the presiding officer and the returning officer in furtherance of the prospects of the Respondent No. 1 deliberately abstained from acting in conformity with certain provisions of the statute. In any event, it is stated, Kabir Hossain and Jamini Chakravarty acted with the consent of the Respondent No. 1 who had visited the place of the incident and had knowledge thereof.

These allegations have been traversed in para. 15 of the written statement. It is denied that there was or is a Police station called Bansjore Police Station or that the Police station was ever the stronghold of the Socialist Unity Centre. All the allegations against Kabir Hossain and Jamini Chakravarty have also been denied. The Respondent No. 1 states that at one point of time there was a great rush of electors and that, for the purpose of proper polling, the presiding officer had to stop it for some time. Thereafter the District Magistrate and a Police force appeared and the polling started again. The allegations against the presiding officer and the returning officer have also been denied.

The Petitioner''s counsel relies on the evidence of Badruddoza. He was the polling agent of Prativa Mukherjee at the Bansjore Primary School (Q. 3). He knows Jamini Chakravarty and Kabir Hossain (Qs. 5 and 17). He identified Jamini Chakravarty in Court (Q. 20). His area is a predominantly Muslim area (Q. 28). At 1.30 p.m. there were disturbances and at that time Jamini Chakravarty and Kabir Hossain came in (Qs. 34 to 36). In Q. 37 he says:

At 1.30 p.m. I came to know that a great row had started on the corridor which was by the side of the window of the room in which the polling agents were.

In Q. 39 he has stated that he came out and saw Jamini Chakravarty and Kabir Hossain arguing with the voters. They were intimidating them and telling them that they belonged to the Congress and they had the (political) power. They would lodge information with the Police if the voters did not withdraw. Then he says that on seeing Jamini Chakravarty and Kabir Hossain intimidating the voters he protested to the presiding officer. The presiding officer noted his protest. (Vide Qs. 41 and 42) Kabir Hossain and Jamini Chakravarty were in that verandah for about 15 minutes (Q. 43). The Police accompanied by the District Magistrate came at 2.30 p.m. (Q. 47). Badruddoza saw the District Magistrate (Q. 49). He told the District Magistrate that Kabir Hossain and Jamini Chakravarty were threatening the voters (Q. 50). The District Magistrate observed that voting was going on and that there was no disturbance at that time. He asked Badruddoza and the presiding officer what was the reason for giving him information and calling him there (Q. 51). Badruddoza told the District Magistrate that Kabir Hossain and Jamini Chakravarty had come in and created disturbance. The presiding officer said to the District Magistrate that he did not know who had rung up the District Magistrate and caused him to came there (Q. 52). At the sight of the Police about 100 people fled away out of fear (Qs. 54 and 55). The persons who fled away thought that the Police and the District Magistrate had come to arrest them (Q. 56). When Kabir Hossain and Jamini Chakravarty were intimidating them, they refused to be intimidated. At that point of time they did not know that the Police would actually arrive; but when the Police did arrive they got panicky and. fled away (Q. 57). Two Policemen stayed inside the polling booth and the rest left the place (Q. 58). Because of the disturbance polling was suspended for half an hour(Q. 68).

Badruddoza asserted that he knew that the people in his area were inclined to vote for the S.U.C. (Q. 71). He knows, however, that in the Bansjore Primary School booth Mihirlal Chatterjee got 58 votes, Prativa Mukherjee got 230 votes and Baidyanath Banerji 377 votes. He admits that Baidyanath got more votes than Prativa''s and Mihirlal''s votes put together (Qs. 72 to 78). In Q. 100 counsel for the Respondent had put to him that the disturbance was caused by supporters of Prative Mukherjee. Mr. Haldar is right in commenting that such a suggestion was uncalled for as there was no such allegation either in the written statement or in the evidence of the first Respondent''s witnesses, but the answer of Badruddoza to this question creates difficulties. He says:

I could not tell you that people of all parties were in the line. The point is that if people of all the parties were in the line, it was improbable that Kabir Hossain and Jamini Chakravarty could take the risk of threatening the voters. Badruddoza was asked by Ramaprosad Roy Chowdhury to give evidence in this case (Q. 117). When he asked Ramaprosad as to the point on which he had to give evidence, he was told that he would have to depose about the disturbance and the fleeing of persons as a result thereof (Q. 123). That was the discussion which he had at his residence, but since he arrived in Calcutta there was no discussion with Ramaprosad (Q. 124).

Learned Counsel for the Petitioner then took up the depositions of Aya Madar Hossain. In Qs. 20 to 26 Aya Madar generally supports the testimony of Badruddoza. According to him the voting remained suspended for half an hour (Q. 26). When the voting was suspended Jamini Chakravarty remained inside the booth and Kabir Hossain went out (Qs. 29 and 30). Thereafter one of the S.U.C. workers approached the presiding officer and asked him why he had suspended the voting. The presiding officer then allowed the voting to be resumed (Q. 31). After the resumption of voting Jamini Chakravarty remained throughout on the verandah (Q. 32). The District Magistrate accompanied by the officer-in-charge of the local Police station and certain sepoys arrived on the spot: when they arrived, about 100 voters left the place out of fear: the others remained standing (Qs. 34 to 36). Those who left did so because Jamini Chakravarty and others had intimidated them that they would be taken into custody by the Police and the arrival of the Police frightened them (Q. 37). As a supporter of the S.U.C. Aya Madar Hossain had nothing to do on the day of polling; whatever had to be done was already done before the day of polling (Q. 85). When the voters were making a good deal of noise, Aya Madar came forward from the shade of a banyan tree under which he was standing: he heard Jamini Chakravarty and Kabir Hossain saying to the voters threateningly that they would have to go away and they would not be allowed to vote (Q. 95). Then another worker of the S.U.C. party joined Aya Madar Hossain. Aya Madar says,

We told them as to why they were doing in that way. They ought to allow the voters to exercise their votes (Q. 97).

Thereafter Kabir Hossain left the place saying threateningly that

they would teach us a lesson by bringing the Police in (Q. 98).

There was a good deal of altercation between Kabir Hossain on one hand and one Bandana Ghosh and Aya Madar on the other (Q. 191). Both Bandana and Aya Madar also told the voters that what Kabir Hossain and Jamini Chakravarty were saying were entirely wrong (Q. 192). They said to the voters that the Police had no power to arrest them if votes were cast against the wishes of Kabir Hossain and Jamini Chakravarty: they also said to the voters that

they need not be led astray by the propaganda of Jamini Chakravarty and Kabir Hossain:

they asked them further to exercise their votes in the manner they liked to do (Q. 193).

Kabir Hossain has deposed before me. He has denied the allegations made against him by Badruddoza and Aya Madar Hossain. Jamini Chakravarty was also sitting in the Court when Badruddoza was giving evidence, but he did not appear before me as a witness. Kabir Hossain says that Jamini went home (Q. 96). He says further that when he was going home Jamini asked him to bring information from his family members. Kabir Hossain saw Jamini''s mother and came to know that his wife was ill. Kabir Hossain came back to Calcutta and told Jamini about the illness of Jamini''s wife. On hearing this news from Kabir Hossain, Jamini left for his native village. (Vide Q. 97) Jamini was in Calcutta for 8 or 9 days before he left (Q. 100). Kabir Hossain has said that neither he nor Jamini Chakravarty went near the queue nor said anything to the voters (Q. 45). According to Kabir Hossain, he saw Aya Madar Hossain at about 8 a.m. near the polling booth when Aya Madar had come to cast his vote: thereafter he did not see him at all throughout the day (Qs. 61 to 67). In Q. 68 Kabir Hossain again denies that he or Jamini Chakravarty went inside the booth and threatened the voters that if they did not cast their votes according to the wishes of Jamini and Kabir, they would be arrested: he says,

We had never gone there. We were all along in the camp.

Baidyanath Banerjee''s evidence on this point is that he did not go to the Bansjore. Primary School booth at all (Q. 217). He had heard from one of his volunteers named Haripada Banerjee about a great rush of voters and suspension of polling for 10 minutes. Since Haripada Banerjee has not been called, this evidence of Baidyanath cannot be noticed by me.

The position, therefore, is that so far as allegations in para. 10(h) of the petition are concerned, there is no evidence that Baidyanath Banerjee, the returned candidate, had anything to do with the free exercise of the electoral right of voters. If it be held that Kabir Hossain and Jamini Chakravarty committed corrupt practices in the interest of Baidyanath, then u/s 100(1)(d)(ii) of the Act of 1951 the Petitioner would have to show that by reason of such interference the result of the election was materially affected. But the evidence on behalf of the Petitioner is that only 100 voters had feld away when the Police arrived on the scene. In other words, if 100 voters did not exercise their franchise due to the intimidation of Kabir Hossain and Jamini Chakravarty, it could not be said that the result of the election was materially affected. I make this observation keeping in view what I have already observed while dealing with para. 10(f) of the petition, namely, that if the allegations in para. 10(f) were correct, the number of voters affected were 170. What I mean to say is that if the Respondent No. 2 had got another 270 votes she would not have been returned and Baidyanath would have still been elected.

But I do not think that even on para. 10(h) I can give a decision in favour of the Petitioner. The onus lay heavily on the Petitioner to establish corrupt practices by Kabir Hossain and Jamini Chakravarty within the meaning of Sub-section (2) of Section 123 of the Act of 1951. In my view this onus has not been discharged. The main reason why I say so is that Badruddoza has told me that, on finding, Kabir Hossain and Jamini Chakravarty intimidating the voters, he had made protests to the presiding officer and the presiding officer noted his protest (Qs. 40-41).

Aya Madar Hossain has also said to me that when altercations were going on between Kabir Hossain and Jamini Chakravarty on the one hand and some voters on the other at about 1.30 p.m., the presiding officer came out and said

that if the voters continued to create a row, there might be a breach of the peace and the presiding officer would be compelled, to close down voting (Qs. 21 to 23).

In Q. 25 Aya Madar has said that thereafter voting was suspended by the presiding officer.

This is a charge of a quasi-criminal nature. The Petitioner''s witnesses were saying that the presiding officer was fully aware of what had happened. To my mind, in these premises, to establish the charge of corrupt practice committed by Kabir Hossain and Jamini Chakravarty, it was incumbent upon the Petitioner to call the presiding officer, but it appears that he had taken no steps to do so. The obvious inference is that his evidence would have been unfavourable to the Petitioner.

Secondly, Badruddoza in his answers to Qs. 48 to 52 has also said to me that he had informed the District Magistrate of the conduct of Kabir Hossain and Jamini Chakravarty when the District Magistrate arrived at the booth. These were questions put by me and I intend to set out these questions with their answers in full. They are as follows:

Q. 49. Did you see the District Magistrate yourself?

Yes.

Q. 50. Did you go out and tell him that Jamini Chakravarty and Kabir Hossain were doing those things?

The District Magistrate came in and I told him about it.

Q. 50. Then what did the District Magistrate do?

The District Magistrate observed that voting was then going on and he said further that there was no disturbance at that time.

Then what was the reason of giving information and calling him here?

He said that to the presiding officer and also to me.

Q. 51. Then what did you say?

I told the District Magistrate that these two persons, namely, Jamini Chakravarty and Kabir Hossain, had come in and created, disturbance and the presiding officef told the District Magistrate that he did not know as to who had rung up the District Magistrate and caused him to come there.

Mrinal Kanti Kar Gupta, the District Magistrate, has been called by the Petitioner and has deposed before me. He could not recall the names of the polling stations which he had to visit upon receiving reports of disturbances at those stations (Qs. 2 to 4). Learned Counsel for the Petitioner drew my attention to his answer to Q. 9. It was said to me that the first part of the answer related to the Bansjore polling station. In this part of the answer the District Magistrate says:

In one place there was a very big crowd which wanted to vote without forming into a queue. So we had to rush Police help and with Police help we formed a queue.

This answer of the District Magistrate does not help the Petitioner at all. And strangely enough what Badruddoza said about the District Magistrate in answer to Qs. 49 to 52 noted above was not put to the District Magistrate. Badruddoza gave evidence on August 18, 1967, and the District Magistrate came to the box on August 21, 1967.

In the premises aforesaid, I have to observe that the averments in para. 10(h) of the petition have not been proved to my satisfaction and I answer the issues raised thereon in the negative.

In this judgment I have discussed all the points which learned Counsel appearing for the Petitioner and the Respondent No. 2 invited me to consider. The approach that has to be borne in mind in examining evidence on corrupt practices has been repeatedly laid down by the Supreme Court. Their Lordships of the Supreme Court have pointed out the double consequence of the proof of a charge of corrupt practice. The Petitioner in this case, if his allegations were true, should have been more careful in his choice of witnesses and should have avoided making untrue and reckless statements from the witness box. But the Petitioner did not follow this course and had failed in my judgment to prove any of the charges he had brought against Baidyanath Banerji in his petition.

The result is that this election petition is dismissed. The Petitioner will pay to the Respondent No. 1 a sum of rupees two thousand as assessed costs of this petition.